Carnival Wants Jury Demand Axed In Passengers' COVID Suit

By Melissa Angell
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Law360 (April 5, 2021, 11:26 PM EDT) -- Cruise operator Carnival Corp. urged a California federal judge on Monday to ax a jury demand from a proposed class of Princess Cruise Lines passengers alleging that the cruise companies allowed passengers aboard a ship while knowing that travelers on a previous voyage had exhibited coronavirus symptoms.

In an 11-page memo, Carnival and Princess Cruise Lines argued that the proposed class of passengers are not entitled to a jury trial because admiralty is the only basis in their suit for federal jurisdiction.

"If the parties are not completely diverse, and there is no other colorable basis for federal jurisdiction, then the case is 'cognizable only in the admiralty or maritime jurisdiction,' and there is no right to a jury trial, even if the complaint cites diversity as a basis for jurisdiction or demands a jury," the brief said.

Passengers who claim to have contracted the coronavirus say that they either tested positive soon after disembarking from the Grand Princess ship early last March or that they met the Centers for Disease Control and Prevention's definition of a "probable case" while still aboard the Grand Princess or soon after disembarking, according to court documents.

In the April 2020 suit, the proposed class of passengers alleges that Princess and its owner, Carnival Corp., allowed more than 2,400 passengers to board the Grand Princess ship in late February while hiding that at least two passengers from the previous trip had COVID-19 symptoms.

The ship's staff didn't impose medical screenings for passengers, and didn't sanitize or disinfect the ship before new passengers arrived, the suit says.

When the Grand Princess left San Francisco for Hawaii last February, there were several dozen people who had traveled on the ship's previous trip to Mexico and remained on board for the Hawaii trip, some of whom had been potentially exposed to the coronavirus, according to the complaint.

Princess told passengers that they had potentially been exposed to the virus and that the ship would return to San Francisco instead of continuing to other destinations.

The next day, passengers were told to remain isolated in their cabins, as there were "11 passengers and 10 crew members who were experiencing symptoms" the plaintiffs say.

In September, U.S. District Judge R. Gary Klausner slashed the passengers' claims, tossing allegations of negligence, saying the plaintiffs didn't establish when they started experiencing symptoms or when they tested positive for COVID-19 or virus antibodies.

And in October, Judge Klausner denied the proposed class' request for certification because the passengers had agreed to waive their right to file class actions when they bought tickets and agreed to travel on the ship.

Princess and Carnival had also argued that the class' claims were too varied to be certified, as the vast majority of the class had not alleged that they contracted the virus on the ship.

Carnival claimed that the proposed class did not properly invoke any non-admiralty basis for federal jurisdiction for the suit and insisted that the case must be dismissed.

It continued that the proposed class' bid to invoke jurisdiction under the 2005 Class Action Fairness Act does not pass muster because its attempt "does not create an independent basis for jurisdiction" that would extend the proposed class the right to a jury trial.

The company added that allowing the proposed class to demand a jury trial in spite of the agreement they signed to waive class claims, along with the court's previous enforcement of the waiver, "would lead to absurd and arbitrary results."

"In this case and future ones, even if certification is promptly denied under the class waiver, the mere styling of the case as a class action would allow non-diverse plaintiffs to manufacture a right to a jury trial," the brief said.

Elizabeth Cabraser, an attorney representing the proposed class, told Law360 on Monday that the motion is another attempt by Carnival to avoid accountability "for recklessly endangering the safety and health of its passengers."

"The many passengers that Carnival carelessly exposed to this deadly virus deserve their day in court," Cabraser said. "Whether ultimately the case is heard by a judge or a jury, we are confident that Carnival will be held accountable for the harm it caused — including deaths, severe illnesses, and life-changing exposures to this deadly virus."

Counsel for Princess Cruise Lines declined to comment while counsel for Carnival did not immediately respond to Law360's request for comment on Monday.

The passengers are represented by Gretchen M. Nelson and Carlos F. Llinás Negret of Nelson & Fraenkel LLP; Mary E. Alexander of Mary Alexander & Associates PC; Elizabeth J. Cabraser, Mark P. Chalos and Jonathan D. Selbin of Lieff Cabraser Heimann & Bernstein LLP, and Joseph G. Sauder of Sauder Schelkopf LLC.

Princess Cruise Lines is represented by Jeffrey B. Maltzman, Rafaela P. Castells and Edgar R. Nield of Maltzman & Partners PA.

Carnival is represented by Jonathan W. Hughes and David J. Weiner of Arnold & Porter.

The case is Archer et al. v. Carnival Corp. and PLC et al., case number 2:20-cv-04203, in the U.S. District Court for the Central District of California.

--Additional reporting by Rachel O'Brien, Sarah Jarvis, Y. Peter Kang and Joyce Hanson. Editing by Regan Estes.

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